Mind Games

I have an important litigation tip for you today: distraction. As every good lawyer should know, the words you use to argue your case are vital. Sometimes they drive a point home. Sometimes they explain difficult concepts. Sometimes they win sympathy for your cause. And sometimes they can stop your judge or jury from thinking too hard about your case. I’m always on the lookout for law practice lessons, and I found a good one in a profile of U.S. Supreme Court Justice Ruth Bader Ginsburg in the March 11 issue of The New Yorker. Here it is: “‘I was doing all these sex discrimination cases, and my secretary said, “I look at these pages and all I see is sex, sex, sex. The judges are men, and when they read that they’re not going to be thinking about what you want them to think about,” Ginsburg recalled. Henceforth she changed her claim to ‘gender discrimination.'” It kind of makes you wonder what was on the secretary’s mind, but it is a good point. The mention of sex can be mighty distracting to old guys in robes. So if getting rid of distracting words can make judges focus on your argument, obviously the converse is true. Distracting words can make judges unfocus on the arguments. If your case is weak, this is the kind of strategy that can make a big difference. But you must be subtle. Simply repeating “sex” over and over could cause seizures for some elderly judges. This could be a good delaying tactic for your client, but you may also be sued by the judge’s next of kin. Also, you don’t want the opposition to know what you’re doing, and calling attention to it (or using their own distracting words). Here are some strategic words or phrases to casually throw into briefs or oral arguments:Legal Duty: If possible, use this phrase several times in the same sentence or paragraph. It seems innocuous and may even be logical in context, but what do you think your judge is going to say when he or she goes into chambers? “He said doodie! Hee, hee, hee.” At least that’s what I’d say.Fried Chicken: Actually, any delicious food will do. If you can, do a little research into your judge’s eating preferences. Say, for example, you know your judge enjoys sushi. Be sure to say “she sues” as many times as you can. You may be able to force a lunch adjournment.Aliens: Immigration cases afford an ideal opportunity for injecting distracting science fiction into your jury’s mind. Find a way to inject words such as “alien,” “abduction,” “space,” and “force.” Science fiction is all about speculation and you want your trier of fact to speculate about every possible (or impossible) scenario. In your closing argument to a jury, a quotation in Klingon followed by the phrase, “Do or do not; there is no try,” is sure to divide jurors between Star Warriors and Trekkies. You real-life case will be forgotten.Gangland Style: We all know how distracting it is when you get a tune stuck in your head and your mind repeats it over and over again even though you hate it. If you can get a judge doing that, you’re home free. Use terms such as “I will always love you,” “we are the champions,” “Sherry, baby” (if it’s a child custody matter and there’s a child named Sherry – do not use this if the judge is named Sherry), and “someone I used to know.” If there’s any kind of crime involved in your case at all, use the phrase “gangland-style” as often as possible, followed with some pretend horse-riding moves. No one will be able to concentrate on the arguments.